http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 9

PETITIONER:

RAKESH RANJAN VERMA AND ORS. ETC. ETC.

Vs.

RESPONDENT:

STATE OF BIHAR AND ORS. ETC. ETC.

DATE OF JUDGMENT10/04/1992

BENCH:

KASLIWAL, N.M. (J)

BENCH:

KASLIWAL, N.M. (J)

SAHAI, R.M. (J)

CITATION:

1992 AIR 1348 1992 SCR (2) 516

1992 SCC Supl. (2) 343 JT 1992 (4) 155

1992 SCALE (2)817

ACT:

Electricity (Supply) Act, 1948 : Section 15 and 78-A.

Bihar State Electricity Board Junior Electrical

Engineer (General) Cadre Rules, 1982-Rule 7-As amended by

Notification dated 14.10.1988.

Electricity Board-Recruitment of Junior Electical

Engineers-Panel-Appointment of some candidates in order of

merit-But candidates lower in merit could not be appointed

due to non-availability of vacancies-Appointment of such

candidates on the lower post of Operator-Undertaking by them

that they will not claim in future the post of Junior

Electrical Engineer-Subsequent claim by such candidates and

direction by State Government under Section 78-A to appoint

and absorb them in the post of Electrical Engineer-Held

direction given by State was encroachment on Boards power

under Section 15-Undertaking given by candidates would not

estop them from being considered for future posts-Direction

to fill the posts in the ratio of 75% by direct recruitment

and 25% by absorption as contemplated under Rule 7.

Service Law-Recruitment-Panel-Filing of vacancies-Mere

existence of vacancies is not sufficient-Employer can decide

how many posts are to be filled.

HEADNOTE:

The Bihar State Electricity Board invited applications

for the posts of Junior Electrical Engineers and on the

basis of a written test and oral test prepared a panel of

790 candidates in the year 1984 which was valid for one

year. Out of this panel, 447 candidates were appointed

according to merit but the remaining posts could not be

filled due to non-availability of posts. Since the position

of the appellants was lowerer in the merit list they were

also not appointed. However, they were appointed against

the vacant posts of Operators, for which the requisite

qualifications was Diploma in Engineering, on their giving a

specific undertaking that they would not make any claim for

appointment as Junior Electrical Engineer.

517

By its advertisment dated 29.7.89 the Electricity Board

applications for the posts of Junior Electrical Engineers

which feel vacant later. The appellants made their claim

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 9

for appointment as Junior Electrical Engineers and the State

Government issued instructions under Section 78-A of the

Electricity (Supply) Act, 1948 to the Electricity Board to

appoint and absorb them.

The Electricity Board failed to comply with the State

Government's direction and the appellants filed petitions in

the High Court of Patna for quashing the advertisement dated

29.7.89 and for a direction to appoint and absorb them in

the vacant substantive posts of Junior Electrical Engineers.

The High Court dismissed the petitions holding that (i) the

power under Section 78-A is to be exercised by State

Government only when some questions of policy are involved

and it cannot be exercised for directing that a particular

individual or a group of persons be appointed as officers of

the Board and; the board has power to make appointments

under Section 15 and it was not bound to follow the

directions of the State Government because it would amount

to encroachment on its power under Section 15; (ii) the

appellants were appointed as Operators on their undertaking

and at a later stage they could not claim appointment

against the posts of Junior Electrical Engineers; (iii) in

view of the amended rule 7 of the Bihar State Electricity

Board Junior Electrical Engineer (General) Cadre Rules, 1982

the appellants could not be absorbed without consideration

of inter-se merit by Selection Committee.

In appeal to this Court, it was contended on behalf of

the appellants that (i) the direction issued by the State

Government under Section 78-A of the Act was no question of

policy and was binding on the Electricity Board; (ii) the

undertaking given by the appellants cannot deprive them from

being appointed on future vacancies and the undertaking was

violative of Article 16 of the Constitution; (iii) the posts

of Junior Electrical Engineers were vacant even before the

expiry of panel and the Board should have absorbed the

appellants against the aforesaid posts.

On behalf on the Electricity Board it was contended

that (i) under section 78-A of the Act the State can issue

directions only on questions of policy and it cannot direct

the Board to make appointments dehors the Rules; (ii) the

panel for Junior Electrical Engineers was valid for one year

and the appellants had no legal right to be appointed on the

basis of their

518

inclusion in the expired panel.

Dismissing the appeals, this Court,

HELD :1. Section 78 of the Electricity (Supply) Act,

1948 clearly lays down that the Board shall be guided by

such directions on questions of policy as may be given to it

by the State Government. In the circumstances of the case

the directions given by the State Government cannot be

considered as directions on any questions of policy.

Therefore, the view taken by the High Court that the

direction given by the State Government to the Electricity

Board to appoint the appellants as Junior Engineers does not

involve any matter of policy and was an encroachment on the

powers of the Board under Section 15 of the Act is correct.

[524D-H, 525A]

2. The life of the panel was one year which came to an

end after one year and that being so no right can be claimed

by the appellants after one year on the basis of inclusion

of their names in the panel list for the posts of Junior

Electrical Engineers. But the giving of any undertaking

cannot estop the appellants from being considered for the

future vacancies of Junior Electrical Engineers and the

appellants cannot be deprived for all times to come.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 9

Therefore, the Board cannot deny the right of the appellants

for appointment on the posts of Junior Electrical Engineers

sought to be filled on the ground that they had given any

undertaking at the time of their appointment as Operators.

[525A-C, 526B]

3. As contemplated in Rule 7 of the Bihar State

Electricity Board Junior Electrical Engineer (General) Cadre

Rules, 1982 read with modification made by Notification

dated 14.10.1988 issued under Section 79(c) of the Act, the

Board has to make appointments for the posts of Junior

Electrical Engineering and by adsorption of the Board's

employees serving on lower posts in the ratio of 75 : 25 and

the appellants would also have a right to be considered for

such appointments. [525C, 526B-C]

3.1. Accordingly the Electricity Board is directed to

issue a fresh advertisement for filling of the posts of

junior Electrical Engineers having fallen due and to make

appointments in the ratio of 75 per cent by direct

recruitment and 25 per cent by absorption as contemplated

under Rule 7. Age bar should not be considered as

disqualification in respect of all those persons who were

included in the panel of 1984. [526E-F]

519

4. It is no doubt correct that vacancies in the general

and GTO cadres of Junior Electrical Engineers were existing

when the panel was operative but it lies with the Board of

decide as to how many posts are required to be filled.

Merely existence of vacancies alone is not sufficient until

the Board considered it necessary as to how many posts were

required to be filled in any year in order to carry out its

function and duties. [527A-B]

A.M. Mani v. Kerala State Electricity Board, A.I.R.

1968 Kerala 76; The Andhra Pradesh State Electricity Board

and Anr. v. N. Ramachandra Rao and Anr., A.I.R. 1969 AP 328,

cited.

JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1627 &

1628 of 1992.

From the Judgment and Order dated 12.12.90 of the Patna

High Court of Jundicature in C.W.J.C. No. 7348 & Civil Writ

Petition No. 7183 of 1989.

Dr. Y.S. Chitale, Anil Jha and Raju Rama Chandran for

the Appellants.

K.K. Venugopal, P.P. Tripathi and Pramod Swarup for the

Respondents.

The Judgment of this Court was delivered by

KASLIWAL, J. Special leave granted.

Appeal in SLP No. 3859 of 1991 arises out of the

Judgment of the Patna High Court dated 12.12.1990 in Writ

Petition No. 7348 of 1989 and Appeal in SLP No. 7642 of 1991

arises out of the judgment dated 12.12.1990 given by the

Patna High Court in Writ Petition No. 7183 of 1989. Both

the above appeals are disposed of by one single order as

both arise in identical circumstances and are intimately

connected with each other.

Rakesh Ranjan Verma and 120 other persons working as

Operators in the Bihar State Electricity Board filed a Writ

Petition No. 7348 of 1989 in the High Court for quashing the

advertisement dated 29.7.1989 issued by the Bihar State

Electricity Board (in short 'the Board') for filling up

vacancies of Junior Electrical Engineers by direct

recruitment and for a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 9

520

direction to the Board to comply with the directions of the

State Government dated 18.7.1988 and 5.5.1989 to

appoint/absorb the petitioners in the vacant substantive

posts of Junior Electrical Engineers.

The Board issued an advertisment No.1/83 dated

26.5.1983 in newspapers inviting applications form eligible

candidates for appointment to 447 posts of Junior Electrical

Engineers. The petitioners applied for the said posts of

Junior Electrical Engineers. On 22.10.1983 a competitive

written test was held and 840 candidates including the

petitioners were declared successful in the written test.

The successful candidates were called for an interview which

was held on different dates in the year 1984. On the basis

of the above written and oral test a panel of 790 candidates

was prepared. Out of the aforesaid panel, 447 candidates,

according to the merit list were given appointment on the

aforesaid on the posts of Junior Electrical Engineers. As

no posts of Junior Electrical Engineers were available for

the remaining 343 candidates which included the petitioners,

they could not be appointed on the posts of Junior

Electrical Engineers. As number of posts of Operators were

also vacant and for which the requisite qualifications was

Diploma in Electrical Engineering, it was, therefore,

decided that the vacant posts of Operators may also be

filled up by such candidates who were willing to opt for

that employment but would not claim the post of Junior

Engineer on the ground that they had applied for appointment

to the post of Junior Engineer. The petitioners opted for

the posts of Operators with a specific undertaking that they

would not claim for the posts of Junior Electrical Engineers

by virtue of their having applied for appointment to the

posts of Junior Engineers and having technical

qualifications. The petitioners subsequently made claim

before the Board and the State Government that they should

be absorbed against the vacant posts of Junior Electrical

Engineers on the basis of the merit list and panel prepared

in the year 1984. The State Government having convinced

with the claim of the petitioners by communication dated

18.7.1988 wrote to the Board that as the petitioners had

appeared in the written test for being appointed against the

posts of Junior Electrical Engineers, any undertaking given

by them on the eve of their appointments as Operators was an

unreasonable restriction, as such they may be absorbed

against the posts of Junior Electrical Engineers, which

became available later during the years 1984 and 1985. It

was mentioned in the above communication that the said

direction was being issued in exercise of the power under

Section 78-A of the Electricity (Supply) Act, 1948

(hereinafter referred to as 'the

521

Act'). Another communication of a similar nature was issued

by the State Government on 5.5.1989 reiterating the earlier

direction given vide letter dated 18.7.1988. The board did

not comply with the aforesaid direction of the State

Government as such the petitioners filed a Writ Petition in

the High Court with the prayer to quash the advertisement

dated 29.7.1989 and to appoint/absorb the petitioners to the

vacant substantive posts of Junior Electrical Engineers.

The stand taken by the Board in the counter affidavit

before the High Court was that only 447 posts of Junior

Electrical Engineers were advertised for appointment and

according to the merit list 447 posts were filled and the

position of the petitioners being lower in the merit list,

they could not be appointed. Thereafter, on the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 9

recommendation of a committee, the petitioners were

appointed against the posts of Operators in Thermal Power

Stations with a specific condition that they shall not later

make any claim for appointment as Junior Electrical

Engineer. When the petitioners accepted the said condition,

they were appointed as Operators. The panel/merit list

which was prepared in the year 1984 lost its validity on

13.9.1985 after the lapse of one year. The posts of Junior

Electrical Engineers which fell vacant later have been

advertised by the advertisement dated 29.7.1989 and fresh

applications have been invited to fill the posts in

accordance with the Rules. It was further stated by the

Board that the State Government had no power to give such

direction under Section 78-A of the Act. The Board itself

has power to make appointments of officers and employees

under Section 15 of the Act.

The High Court held that the Board is a statutory

authority constituted by the State Government under Section

5 of the Act. Section 15 of the Act in clear and

unambiguous words vests power in the Board to appoint its

officers and employees as may be required to enable the

Board to carry out the functions under the Act. The

appointment of the Secretary of the Board alone is subject

to the approval of the State Government. So far as other

officers and employees of the Board are concerned, no

approval is required to be taken from the State Government.

The High Court further held that the power under Section 78-

A of the Act is to be exercised by the State Government only

when some questions of policy are involved. Such power is

not to be exercised for directing that particular individual

or a group of persons be appointed as officers of the Board.

The Board being an autonomous authority clothed with the

power to make

522

appointments of its officers and employees under Section 15

of the Act is not bound to follow the directions given by

the State Government which amounted to an encroachment on

the power of the Board vested under Section 15 of the Act.

The High Court in taking the aforesaid view placed reliance

on a Full Bench authority of the Kerala High Court in A.M.

Mani v. Kerala State Electricity Board, AIR 1968 Kerala P.76

and a Division Bench authority of Andhra Pradesh High Court

in The Andhra Pradesh State Electricity Board and Another

v. N. Ramachandra Rao and Another, AIR 1969 Andhra Pradesh

P.328. The High Court also held that whenever vacancies

exist in public offices an opportunity should be given to

all persons eligible on the date such posts are to be filled

up, for being considered for appointed as Operators on

undertaking being given by them individually that at later

stage they shall not claim for being appointed against the

posts of Junior Electrical Engineers. The High Court

further held that under Rule 7 of the Bihar State

Electricity Board Junior Electrical Engineer (General) Cadre

Rules, 1982 as amended by a new Rule 7 by Notification dated

14.10.1988 issued under Section 79(c) of the Act a Selection

Committee has to consider the cases of Diploma holders who

had acquired the Diploma before joining the lower posts

under the Board or have acquired Diploma while in the

service of the Board for being appointed against the posts

of Junior Electrical Engineers. In view of this amended Rule

which had come into force on 14.10.1988, now there was no

question of absorption of the petitioners outright without

consideration of inter se merit by the Selection Committee.

The High Court in the view taken above passed the following

order :

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 9

"For the reasons mentioned above, it is not

possible to hold that the two communications dated

18.7.1988 and 5.5.1989 shall be deemed to be a

direction on question of policy by the State

Government so that this Court may issue a writ of

mandamus directing the Board to comply with those

Directions. It is also not possible for this Court to issue

a direction to the Board to absorb the petitioners

straightway against the posts of Junior Electrical Engineers

: of course, it will be open to the Board to consider the

cases of the petitioners along with others for appointments

to the posts of Junior Electrical Engineers in

523

accordance with the new Rule 7 referred to above.

This writ application is, accordingly, dismissed.

In the circumstances of the cases, there shall be

no order for costs."

We have heard learned counsel for the parties at length

and have perused the record. Dr. Chitale, Learned Senior

Advocate appearing on behalf of the appellants contended

that the direction issued by the State Government vide

letters dated 18.7.1988 and 5.5.1989 under Section 78-A of

the Act was binding on the Board. It was contended that the

directions given in the aforesaid letters was on questions

of policy and the State Government was fully authorised to

give such directions to the Board in exercise of its power

conferred under Section 78-A of the Act. It was further

submitted that the appellants were selected for the posts of

Junior Electrical Engineers after passing the written and

oral examination and were kept in the merit/panel list of

1984. It was contended that merely because the appellants

have an undertaking while being appointed as Operators that

they would not lay any claim on the posts of Junior

Electrical Engineers, cannot deprive them from being

appointed on future vacancies of Junior Electrical

Engineers. The undertaking was unconscionable and violative

of Article 16 of the Constitution. It was submitted that

some of the appellants have become over age and it would not

be possible for the appellants to compete with the fresh

incumbents in case the posts are filled by direct

recruitment. It was contended that all the appellants are

Diploma holders and have additional advantage of experience

on the post of Operators and in these circumstances the

appellants should be absorbed against the vacant posts of

Junior Electrical Engineers without competing with the

direct recruits.

On the other hand, Learned Counsel appearing for the

Board supported the judgment of the High Court and contended

that the panel of 1984 exhausted after one year and

thereafter the appellants had no right or claim whatsoever

on the posts of Junior Electrical Engineers to be filled now

through advertisement issued on 29.7.1989. It was further

submitted that the Board had shown a gesture of goodwill by

giving appointment to the appellants on the post of

Operators and now the appellants cannot put forth a legal

right for being appointed as Junior Electrical Engineers

after a period of more than 4 years on the basis of

inclusion in the panel of 1984. They have to compete with

other fresh competitors who have become

524

eligible for such posts to be filled by direct recruitment

according to the Rules. It has been submitted that Section

78-A of the Act empowers the State Government to issue

directions of policy and no direction under such power can

be given to the Board to make appointment of the appellants

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 9

dehors the Rules.

Section 78-A of the Act reads as under :-

"Directions by the State Government. - (1) In the

discharge of its functions, the Board shall be

guided by such directions on questions of policy as

may be given to it by the State Government.

(2) If any dispute arises between the Board and

the State Government as to whether a question is or

is not a question of policy, it shall be referred

to the Authority whose decision thereon shall be

final."

The above provision clearly lays down that the Board

shall be guided by such directions on questions of policy as

may be given to it by the State Government. In the

circumstances of the case before us the directions given

under letters dated 18.7.1988 and 5.5.1989 cannot be

considered as directions on any question of policy. So far

as the appointment of staff is concerned, Section 15

empowers the Board to appoint such officers and employees as

may be required to enable the Board to carry out its

functions under the Act. Section 15 of the Act reads as

under :-

"Appointment of staff. - The Board may appoint a

Secretary and such other officers and employees as

may be required to enable to Board to carry out its

functions under this Act :

Provided that the appointment of the Secretary

shall be subject to the approval of the State Government."

Thus, under the proviso to Section 15, it is only the

appointment of the Secretary which is subject to the

approval of the State Government. So far as other staff is

concerned, it lies with the Board to make appointment of all

officers and employees as may be required to enable the

Board to carry out its functions under the Act. Thus, we

agree with the view taken by the High Court in this regard

that the direction given by the State Government to appoint

the appellants as Junior Engineers by the Board

525

does not involve any matter of policy and it would be an

encroachment on the powers of the Board given under Section

15 of the Act. It is not in dispute that the life of the

panel was one year which came to an end on 13.9.1985 and

that being so no right can be claimed by the appellants

after 13.9.1985 on the basis of inclusion of their names in

the panel list of 1984 for the posts of Junior Electrical

Engineers. So far as giving of any undertaking is

concerned, we are in agreement with the contention of the

Learned Counsel for the appellants that such undertaking

cannot estop the appellants from being considered for the

future vacancies of Junior Electrical Engineers and the

appellants cannot be deprived for all times to come. The

post of Junior Electrical Engineer is now governed by the

Bihar State Electricity Junior Electrical Engineer (General)

Cadre Rules, 1982 and specially Rule 7 read with

modification made by Notification dated 14.10.1988 issued

under Section 79 (c) of the Act which reads as follows :-

"Appointments to the posts of Junior Electrical

Engineers from amongst the employees of the Board

having Diploma in Electrical Engineering will be

made on the basis of the recommendations of a

Selection Committee which will be constituted by

the Chairman for the purpose. The Selection

Committee will examine the records and interview the

candidates who obtain diploma in Electrical Engineering

while in the service of the Board along with those employees

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 9

who had obtained diploma in Electrical Engineering before

joining the service of the Board."

Thus, by a combined reading of Rule 7, posts of Junior

Electrical Engineers (General) Cadre shall be filled by

direct recruitment from Diploma holders in Electrical

Engineering and by absorption of the board's employees

serving on lower posts. Appointment by direct recruitment

and by absorption shall be made against vacancies in a

calendar year in the ratio of 75-25. Now in case of

appointment to the posts of Junior Electrical Engineers if

made by absorption from amongst the employees of the Board

serving on lower posts that has to be made through a process

of screening by a Selection Committee. So far as

appointment to be made by direct recruitment, the candidates

have to be selected on the basis of merit after going

through the process of written and oral examination and the

appellants shall have to compete with all the Diploma

holders who would compete for such posts of Junior

Electrical Engineers to be filled

526

by direct recruitment. The Board in this regard has clearly

stated in the counter affidavit filed before this Court that

the appellants who apply for the posts of Junior Electrical

Engineers as and when advertisement is issued and appear at

the competitive examination to be held again by the Board

for appointment on the posts of Junior Engineers and in case

they Compete, they would be appointed against the posts of

Junior Electrical Engineers. The Board, of course, cannot

deny the right of the appellants for appointment on the

posts of Junior Electrical Engineers now sought to be filled

on the ground that the appellants had given any undertaking

at the time of their appointment as Operators. The Board

has to make appointments for the posts of Junior Electrical

Engineers both by way of direct recruitment from Diploma

holders in Electrical Engineering and by absorption of the

Board's employees serving on lower posts in the ratio of 75-

25 as contemplated in Rule 7 and the appellants would also

have a right to be considered for such appointments. We

have been informed during the course of argument on behalf

of the Board that no written or oral examination has been

conducted to fill the posts of Junior Electrical Engineers

in pursuance to the advertisement issued on 29.7.1989.

Thus, taking in view the entire facts and circumstances

of the case and in order to do full justice to all the

persons concerned, we direct the Board to issue a fresh

advertisement for filling of the posts of Junior Electrical

Engineers having fallen due upto 31st March, 1992 and to

make appointments in the ratio of 75 per cent by direct

recruitment and 25 percent by absorption as contemplated

under Rule 7. It is further directed that age bar would not

be considered as disqualification in respect of all those

persons who were included in the panel list of 790 persons

prepared in 1984.

So far as appeal in SLP No. 7642 of 1991 is concerned,

it arises out of the writ petition No.7183 of 1989 filed

before the High Court by 65 persons. These 65 persons are

also those persons who were included in the panel of 790

person prepared in 1984 and who did not qualify in merit for

being appointed on 447 posts of Junior Electrical Engineers.

Thus, they are also falling in the same category as that of

121 appellants of appeal arising out of SLP No.3859 of 1991.

The appellants in this case have put forth an additional

ground that 116 posts of Junior Electrical Engineers had

fallen vacant even before the expiry of one year and the

Board ought to have absorbed the appellant against the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 9

aforesaid 116 posts of Junior

527

Electrical Engineers. It is no doubt correct that 116

vacancies in the general and GTO cadres of Junior Electrical

Engineers were existing as on 31.12.1985, but in our view it

lies with the Board to decide as to how many posts of Junior

Electrical Engineers are required to be filled to enable the

Board to carry out its functions under the Act. Merely

existence of vacancies alone is not sufficient until the

Board considered it necessary as to how many posts were

required to be filled in any year in order to carry out its

functions and duties. There is no allegation that the posts

were not released for appointment with any mala fide

intention or in order to give benefit to any person by

virtue of postponement of filling such vacancies. Thus, in

our view the appellants of this case also would be governed

by the same direction which has been given in the case of

appeal arising out of SLP No. 3859 of 1991.

Both the appeals are therefore dismissed in the manner

indicated above. There will be no order as to costs in the

circumstances of the case.

T.N.A. Appeal dismissed.

528